[2020] KEHC 8965 (KLR)
The court found that although there was a delay of over five months in filing the application for stay, in the interest of justice, a conditional stay of execution was warranted. The applicants were required to deposit the balance of the decretal sum in a joint interest earning account and to file and serve the...
Source-derived case information.
- Citation
- [2020] KEHC 8965 (KLR)
- Parties
- Appellant: Henry Wafula; Appellant: Vincent Okoth; Respondent: Willimina Agunda (Suing as a legal representative of the estate of Noel Ruth Wasike)
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 15 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- KW Kiarie
- Legal Topics
- Stay of Execution, Appeals Process, Decretal Sum, Delay in Filing, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Wafula
Appellant
Vincent Okoth
Appellant
Willimina Agunda (Suing as a legal representative of the estate of Noel Ruth Wasike)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the lower court's judgment pending appeal.
- 2 Whether the application for stay was made without undue delay.
- 3 Whether the applicants should provide security for the due performance of the decree.
Ratio Decidendi
The court found that although there was a delay of over five months in filing the application for stay, in the interest of justice, a conditional stay of execution was warranted. The applicants were required to deposit the balance of the decretal sum in a joint interest earning account and to file and serve the record of appeal within 30 days. Failure to comply would result in the lapse of the stay order. The court exercised its discretion to balance the interests of both parties, ensuring that the respondent's right to enjoy the fruits of judgment was protected by requiring security, while also preserving the applicants' right to appeal.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Applicants to deposit the balance of the decretal sum in a joint interest earning account in the names of both advocates within 30 days.
- Applicants to file and serve the record of appeal within 30 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL APPEAL NO.15 OF 2018
BETWEEN
HENRY WAFULA..................................................1ST APPELLANT/APPLICANT
VINCENT OKOTH............................................. 2ND APPELLANT/APPLICANT
VERSUS
WILLIMINA AGUNDA [Suing as a legal representative of the estate of]
NOEL RUTH WASIKE.....................................................................RESPONDENT
(Being an Appeal from the Ruling in Busia Chief Magistrate’s Court
Civil Case No. 23 of 2016 by Hon. Maureen A. Odhiambo- Resident Magistrate).
RULING
1. The applicants herein moved the court by way of Notice of Motion dated 11th March 2019 under sections 1A, 1B, 3 &3A of the Civil Procedure Act, order 10 Rule 11 & Order 50 Rule 6 of the Civil Procedure Rules. They are seeking the following orders:
a) That there be a stay of execution of the judgment of the lower court which was delivered on 14th March 2017 and any other consequential orders pending the hearing of this application.[spent]
b) That there be a stay of execution of the judgment of the lower court which was delivered on 14th March 2017 and any other consequential orders pending the hearing of this appeal.
c) That costs of this application be provided for.
2. The application is premised on the following grounds:
a) That the appellants have preferred an appeal against a ruling that dismissed their application dated 17th May 2018.
b) That they have a prima facie arguable appeal with high chances of success.
c) That the respondent will not suffer any prejudice.
d) That this application was made without undue delay.
3. The application was opposed on the following grounds:
a) The application lacks merit.
b) That the application has been compromised by the appellants/applicants payment part of the decretal sum of Kshs. 12,000/=.
4. The impugned ruling of the lower court was delivered on 21st September 2018. The present application was filed in court on 13th March 2019. This was a period of over 5 months. The applicants cannot be heard to say they acted with due diligence. Upon my perusal of the court file, I notice that there is no record of appeal.
5. In the interest of justice I will allow the application for stay of execution of the judgment and decree of the lower court pending the hearing of this appeal subject to the following conditions:
i) The applicants to deposit the balance of the decretal sum in a joint interest earning account in the names of both advocates on record within 30 days of this ruling.
ii) That the applicants file and serve the records of appeal within 30 days of this ruling.
Failure to comply with the above mentioned conditions, then the order for stay of execution will lapse and the respondent be at liberty to execute.
6. Since there has been inordinate delay, the applicants will bear the costs of this application.
DELIVEREDandSIGNEDatBUSIAthis29thday of January, 2020
KIARIE WAWERU KIARIE
JUDGE